A legal watershed occurred on 1 April 2020 when the UK Supreme Court handed down its judgment in the case of Whittington Hospital NHS Trust v XX. In doing so, it marked an important development and intersection of medical negligence, fertility and surrogacy law in the UK.
On one level this case depicts a young woman's personal battle with cancer, her catastrophic loss of fertility as a result of admitted medical negligence and her struggle to have a much-wanted family; a situation with which many people can identify. On another level, it represents a long-running (and ultimately successful) battle with outdated laws and restrictive public policy in the UK.
This enlightened legal ruling rightly recognises that damages can be awarded for surrogacy and donor conception following negligent loss of fertility and ability to bear a child. For the first time, this now includes costs for overseas commercial surrogacy in appropriate cases. This is welcome news that will help improve fertility and family building options and outcomes for victims of medical negligence and paves the way for greater recognition of the importance and value of individual fertility, surrogacy and donor conception.
It provides further impetus for reform of outdated surrogacy law in the UK. However, this still only addresses small (albeit important) aspects of the UK fertility landscape and wider issues remain that urgently require intelligent law and policy reform.
Following a failure to detect signs of cancer from smear tests in 2008 and 2012 and biopsies in 2012 and 2013, the claimant (the woman known as XX) then aged 29, was diagnosed with invasive cancer of the cervix. The late diagnosis meant she was unable to have fertility sparing surgery and very sadly her treatment caused irreparable damage to her uterus and ovaries and triggered premature menopause.
She had always wanted a family with four children and this was a devastating blow. Before undergoing urgent life-saving treatment she underwent a cycle of ovarian stimulation in June 2013 and harvested and froze eight mature eggs.
Consequently, she mounted a medical negligence claim, including the costs of four commercial surrogate pregnancies in California using her own or donor eggs and her partner's sperm. This took into account the informal, uncertain and legally restricted nature of surrogacy in the UK. It also reflected the well-established commercial surrogacy system in California offering more choice and peace of mind, legally binding surrogacy arrangements and pre-birth orders in the Californian court.
The case first came before the English High Court in June 2017. A damages award was made but restricted to two altruistic UK surrogacies using the claimant's own eggs, totalling £74,000 plus damages for pain, suffering and loss of amenity.
This was a legal step forward in improving outdated medical negligence and surrogacy law and navigating restrictive UK public policy. It represented the first award for altruistic surrogacy damages in the UK. However, both XX and the hospital appealed.
At the first hearing, the judge Sir Robert Nelson refused the claim for commercial surrogacy costs in California on the grounds that he was bound by the earlier Court of Appeal decision of Briody. As such, he determined that commercial surrogacy was contrary to UK public policy and the claim for surrogacy costs in California therefore failed.
However, the judge acknowledged my contribution as an instructed expert in this case providing evidence on fertility, surrogacy and donor conception law saying 'Ms Ghevaert may be right in saying that attitudes have changed and are indeed changing in relation to surrogacy but such change must be brought about by the Law Commission and Parliament, or perhaps the Supreme Court'.
The case proceeded to the Court of Appeal in November 2018, where a damages award was made including the costs of fertility treatment, donor conception and commercial surrogacy in California. The case was then appealed to the Supreme Court and heard in December 2019. The Supreme Court by a majority of 3:2 dismissed the defendant hospital's appeal, enabling the recovery of damages for commercial surrogacy costs in the US.
Its legal ruling heralds a new era in the recognition of individual fertility and damages awards for surrogacy. It also clarifies that donor egg surrogacy is a legitimate type of compensation. In reaching this decision, the Supreme Court makes clear that there is an evidential burden to establish reasonable costs and prospects of success. Furthermore, it must be reasonable to seek an overseas commercial surrogacy arrangement as opposed to a UK surrogacy. These criteria are unlikely to be met unless the foreign country has a well-established system that safeguards the interests of the surrogate, intended parents and resulting child.
In the lead judgment, Lady Hale stated that UK law on surrogacy is 'fragmented and in some ways obscure'. The judgment takes into account developments in law and social attitudes towards surrogacy and the fact that it is now an accepted form of family building, as recognised by the Department of Health and Social Care in its guidance on surrogacy arrangements in February 2018 (updated November 2019). The judgment is also informed by the joint Consultation Paper issued in June 2019 by the Law Commission and the Scottish Law Commission, Building families through surrogacy: a new law. Moreover, it recognises that new techniques have been developed, success rates have improved and that increasing numbers of people are turning to assisted reproduction to build a family.
Importantly, Lady Hale makes clear in the judgment that the claimant's wish to enter into a commercial surrogacy arrangement in California is not a criminal offence in the UK or abroad. She concludes 'that it is no longer contrary to public policy to award damages for the costs of a foreign surrogacy' where it is legal and reasonable to do so.
The wider picture
This progressive legal ruling from the UK Supreme Court is a positive step forward. However, there continues to be a piecemeal approach to issues across the UK fertility sector. The current Covid-19 pandemic has brought into close focus fertility treatment and medico-legal delivery and its inter-relationship with national public health and policy issues.
Strategically, there is an increasing need for a new centralised approach for the UK fertility sector that works hand in hand with healthcare, social welfare, education, science, technology and economic policy.
The UK would benefit from an expert advisory committee to look at rapidly evolving inter-connected social, technological, scientific and reproductive advances that are rapidly influencing our fertility and family building choices ('Warnock 2020'). The UK would also benefit from a dedicated Ministry for Genomics and Fertility, with a Minister delivering a unified strategy for the twenty first century fertility sector.
This legal ruling is a catalyst for change. It has the capacity to build momentum for fertility, surrogacy and wider law and policy reform with positive engagement from all relevant stakeholders.